Excerpt: - .....to render account from 1313 to 1337 b.s., and a commissioner has been appointed to take accounts. hari pada ghose, plaintiff 1, guru pada ghose, the father of the minor plaintiff 2, and plaintiff 3, gokul mohini dassi, wife of rakhal das sarcar, now dead, were the owners of some zemindary and other properties. hari pada and guru pada were both minors before 1313; the latter who was the eldest of the two attained majority in 1313. at the time when both of them were minors, rakhal das sarcar was appointed their guardian by the district judge. as such guardian he appointed the defendant-appellant an agent of the minor's estate. his wife also appointed the same gentleman as her agent. the duties of the defendant were to collect the rents and profits of all their properties, to put in.....

Judgment:

R.C. Mitter, J.

1. This appeal is on behalf of the defendant. It is directed against the judgment and decree of the learned District Judge, Birbhum, which have affirmed the judgment and decree of the Munsif of Suri. The defendant has been held liable to render account from 1313 to 1337 B.S., and a Commissioner has been appointed to take accounts. Hari Pada Ghose, plaintiff 1, Guru Pada Ghose, the father of the minor plaintiff 2, and plaintiff 3, Gokul Mohini Dassi, wife of Rakhal Das Sarcar, now dead, were the owners of some zemindary and other properties. Hari Pada and Guru Pada were both minors before 1313; the latter who was the eldest of the two attained majority in 1313. At the time when both of them were minors, Rakhal Das Sarcar was appointed their guardian by the District Judge. As such guardian he appointed the defendant-appellant an agent of the minor's estate. His wife also appointed the same gentleman as her agent. The duties of the defendant were to collect the rents and profits of all their properties, to put in Government revenues and rent due to the superior landlords and to pay the net profits to his principals.

2. The plaint states that he submitted regular accounts to Rakhal Das Sarcar acting as guardian of the said minors and to him, as the husband of plaintiff 3, till 1313, when Guru Pada attained majority; but since then he has not submitted complete accounts for a single year. The plaint further states that after Hari Pada and Guru Pada attained majority he continued as their agents, and after Guru Pada's death in Magh 1335 (February 1929) he continued as the agent of Hari Pada and Guru Pada's minor son till 1337 or the beginning of 1338 on the same terms. There is no further question that he continued as the agent of plaintiff 3 since his appointment till the beginning of 1338. The plaintiffs have accordingly sued him for accounts for the period 1313 to 1337, as he refused to render accounts in spite of repeated demands made since the commencement of the year 1338. The plaint was filed on 17th April 1934. The main defences now maintained are that the suit is not maintainable and that it is bad for misjoinder of parties and causes of action, and that it is barred by limitation; at least the claim for accounts up to the death of Guru Pada, the father of plaintiff 2, is so barred. Both the Courts below have overruled these defences and have granted the plaintiffs a decree for accounts from 1313 to 1337.

3. The points urged by Mr. Bhattacharjya are the following: (i) That the suit is bad for misjoinder of parties and causes of action; (ii) that the claim for accounts up to the death of Rakhal Das Sarcar is not maintainable on the plaint as filed; (iii) that the defendant's agency under Guru Pada and Hari Pada terminated on the death of Guru Pada, and the claim for the period up to Guru Pada's death is barred by limitation; and (iv) that the claim after the death of Guru Pada is also barred by limitation as the suit has been instituted beyond three years of the termination of the defendant's agency under plaintiffs 1 and 2. Regarding this last mentioned point the learned Subordinate Judge found that the defendants' services were dispensed with not in Pous 1337 as alleged by him, but in the beginning of the year 1338. He did not precisely find on what date of Baisakh 1338 the defendant ceased to be the plaintiff's agent, but assuming that his services ceased on 1st Baisakh 1338, which corresponds to 15th April 1931, the suit would be in time if filed on 15th April 1934. It was filed on 17th April 1934, and Mr. Bhattacharjya contended that it was filed too late by two days, but as soon as it was pointed out that 15th and 16th April 1934, were civil Court holidays, he did not pursue the point further and conceded that there was nothing in it. The fourth point therefore need not be conaidered further.

4. Regarding the first point there cannot be any doubt that two suits have been combined into one. The defendant was cmployed as an agent by Gokul Mohini by a separate power of attorney. This agency has continued from before 1313 till the beginning of 1338 without any break. The ageney of defendant 1 under Guru Pada and Hari Pada was a separate agency. The properties which defendant 1 was to manage were no doubt the same, viz., the joint properties of Gokul Mohini and Guru Pada and Hari Pada, but the defendant was the agent of two sets of principals appointed at different times and by different acts. But having regard to the scope of the agency and the defence taken some questions of fact and law were bound to arise and have in fact arisen. The Court of first instance overruled this point on this ground and the point was not further mooted by the defendant before the lower appellate Court where the defendant was the appellant. On the principle formulated in Ramendra Nath Roy v. Brojendra Nath Dass 1918 Cal 858 I overrule this point.

5. The second point urged by Mr. Bhattacharjya, is based on the following facts: He says that the plaintiffs admit in their plaint that they have received from the defendant complete account papers up to a certain time. In their plaint they do not say that the defendant was asked to explain those papers and had refused. Under these circumstances Mr. Bhattacharjya says that the plaint is bad as it does not succinctly state the contents of those account papers so received from the defendant and does not indicate what items appearing in them are under challenge by the plaintiffs. This contention of Mr. Bhattacharjya is supported by the observations made in Bharat Chandra Chakravarty v. Kiran Chandra Roy 1925 Cal 1069 at pp. 781-782 and is a sound one, but it does not affect the decree made. The decree for rendition of accounts is from 1313 to 1337. The admission in the plaint is that complete papers had been submitted up to the time when Guru Pada and Hari Pada were both minors, and no such papers have been submitted by the defendant after Guru Pada had attained majority, which was in the year 1313. The principle formulated in Bharat Chandra Chakravarty v. Kiran Chandra Roy 1925 Cal 1069 does not accordingly help the defendant in respect of the claim after 1313.

6. The third point urged by Mr. Bhattacharjya raises a very important question. He says that the defendant was appointed an agent of Guru Pada and Hari Pada by their guardian Rakhal Das Sarcar. He continued to be the agent of the said persons till February 1929 (Magh 1335) when Guru Pada died. On that event he says that the agency terminated and a suit for accounts for this period has to be brought within three years from February 1929, under the second part of Article 89, Lim. Act. He further says that the continuance of the employment of defendant by Hari Pada and Guru Pada's son under the same terms and conditions after February 1929 is really in the eye of the law a new agency, and in the suit as filed by the plaintiffs can only get a decree for accounts from Magh 1335 (February 1929) till Chaitra 1337. This argument cannot apply to Gokul Mohini's claim because the defendant was her agent under a separate power of attorney and there has not been a termination of that agency till the beginning of 1338. The claim of Hari Pada and plaintiff 2, Guru Pada's son, has to be examined carefully.

7. Where one man employs an agent, there cannot be any difficulty. Section 201. Contract Act, which does not make an exception in favour of a special contract, says that the agency is terminated by the death of either the principal or the agent. If the same person continues to be empolyed on the same terms as before under the legal representative of the deceased principal, in the eye of the law a new agency is constituted, and for the purpose of limitation a suit for accounts for the old agency must be brought within three years of the termination of the said agency e.g. from the principal's death, assuming that there had been no previous demand and refusal to account: Madhusudan Sen v. Rakhal Chandra 1916 Cal 680 at pp. 254-255; Bir Bikram v. Jadab Chandra 1935 Cal 817. This, I gather, is also the principle formulated by the Judicial Committee of the Privy Council in Nobin Chandra Barua v. Chandra Madhab Barua 1916 P C 148 where Lord Parmoor said that the legal representatives of Nanda Kumar Barua had a right to demand accounts from the agent appointed by Nanda Kumar for a period of three years from the death of Nanda Kumar under the last part of Article 89, Limitation Act.

8. Cases, however, where two or more persons appoint an agent by the same act or instrument, and where only one of such principals dies, present difficulties. These cases cannot be answered simply by the terms of Section 201, Contract Act. The principle that the death of the principal terminates the agency as embodied in Section 201, Contract Act, is a principle taken from the English law. In England, however, cases where the appointment of an agent had been made by a firm have presented difficulties when one member of the firm subsequently died. It has been held that death of one of the partners does not ipso facto terminate the agency, but the scope of the agency and the business for which the agent was employed are material factors: Taskar v. Shepperd (1858) 6 H & N 575 and Phillips v. Hull Alhambra Palace Co. (1901) 1 K B 59. In Re Sital Prosad 1917 Cal 436, a case which has been followed by the Madras High Court in Ponnusami Pillai v. Chidambaram Chettiar 1918 Mad 279, Mookherjee, J. examined the position in detail and laid down the law in these terms:

We cannot consequently hold as an inflexible rule of law that whenever two principals appoint an agent to take charge of some matter in which they are jointly interested, the death of one terminates the authority of the agent not merely as regards the deceased, but also as regards the remaining principal. We have in each case to determine the true intention of the parties to the contract, from the terms thereof and from the surrounding circumstances.

9. In that case, as also in Ponnusami Pillai v. Chidambaram Chettiar 1918 Mad 279, members of a joint Mitakshara family had appointed one of them as agent for a certain purpose. It was held that the death of one of the members who had appointed their coparcener as agent, did not affect the agency at all, the agency continued not only under the surviving coparceners who had concurred in the appointment, but also under all the coparceners including sons and descendants of the deceased coparcener. This view that the agency continued, so to say, under the joint family as before, may be due to the special facts of those cases and to the peculiar position of a joint Mitakshara family. That fact may account for the continuance of the agency not only under the survivors, but also under the descendants of the deceased principal, but I do not see why in other cases the agency should not continue under the surviving principals only in the absence of any evidence that all the principals were, as Mookerjee, J. points out, in Re Sital Prosad 1917 Cal 436, and to use his convenient expression, 'joint principals' and not 'joint and several principals' and 'the power given to the agent is not joint and several.' It may terminate so far as the representative of the deceased principal is concerned and to that extent only. This accords with the view taken in Madhusudan Sen v. Rakhal Chandra 1916 Cal 680, a case which I have already noticed. The power of attorney which Rakhal Das Sarcar as guardian of his wards executed in favour of the defendant has not been produced. The defendant's statement that he never saw it and never knew of its terms does not seem to me to be either convincing or truthful. If he wants to maintain the position that the death of Guru Pada terminated his agency under Hari Pada also, it was incumbent on him to prove from the terms of the power of attorney, either by producing the power of attorney or from secondary evidence, that Guru Pada and Hari Pada were 'joint principals' and not 'joint and several principals' in the words of Mookerjee, J. Section 109, Evidence Act, in my judgment, places the the burden of proof on him.

10. I accordingly hold that on the death Of Guru Pada the defendant continued to be the agent under Hari Pada. The same agency continued and Hari Pada can by invoking Article 89, Limitation Act, get accounts from him from 1313 to 1337.

11. On Guru Pada's death, however, the old agency under him terminated and a new agency under Guru Pada's son, namely, under plaintiff 2, sprang up. Plaintiff 2 was bound to sue for accounts of his father's time within three years of his father's death which occurred in February 1929. If he had not been a minor at his father's death and at the date of this suit his claim from 1313 to Magh 1335 (February 1929) would have been barred by time, but his minority has saved his claim for this period. Section 6, Limitation Act, covers the case and there is no need for him to invoke Section 7 at all. I accordingly overrule this point also. The result is that this appeal is dismissed with costs.